127-NLR-NLR-V-17-CHARISA-v.-COUDERT.pdf
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Present: Ennis J. and De Sampayo A.J.1M4.
OHABISA v. COUDEBT.
136—D. C. Negombo, 9,498.
Gift by one spouse to another—Partita married in community before.
1876—Ordinance No. 16 of 1876, e. 18—Prescriptionr^-'‘ Acknow-ledgment of a right existing in another ”—Acknowledgment mustbe of the right of a party to the action or of hit predecessor in title.
A spouse married before the coming into operation of Ordinance-No. 15 of 1676 may by virtue of section 18 of the Ordinance,notwithstanding the existence of any community of goods betweenthe spouses, make a gift of property in favour of the other spouse.
The property so gifted becomes separate property of the donee,subject only to the debts and engagements of the donor.
Os Sampayo A.J.—Under the Boman-Dutch law a gift by- onespouse to the other is not absolutely void.
^1HE facts appear from the judgment.
A. St. V. Jayewardene, for appellant.
Bawa, K.C. (with him Samarawickreme), for respondent.
Cur. adv. vuIt.
July 17, 1914. Ennis J.—
The land sought to be partitioned in this action originally belongedto Amanduwa and Subi, who were married in community of propertybefore the passing – of the Ordinance No. 15 of 1876. In 1888Amanduwa executed a deed of gift of the land in favour of Subi.
In 1899 Subi gifted the northern half to Gavaria. Subi had threechildren, Bellinda, Gunaya, and Lapi. Bellinda married one SimaVeda, and died in 1900, leaving two children, the plaintiffs, who areminors. In 1906 Gavaria purchased from Sima Veda, Gunaya,and Lapi the southern half of the land. Gavaria’s interest in theland passed by a series of deeds to the defendant. The plaintiffsappear by Subi, their next friend.
The first question to be decided is whether the gift of 1888 byAmanduwa passed the property to Subi. This turns on the con-struction to be placed on section 13 of Ordinance No. 15 of 1876.
Section 5 of that Ordinance provides that the matrimonial rightsof a husband and wife married before the proclamation of. theOrdinance shall, except as in the Ordinance otherwise expresslyprovided, be governed by such law as would have been applicablethereto if the Ordinance had not been passed. Is section 13 anexpress- provision of the Ordinance which would enable the husband
1914.
Ennis J.
Oharisa v.Coudert
( 398 )
to make a good and valid gift to his wife so as to vest property inher ? In my opinion it is. Section 13 enacts that it shall belawful for a husband or wife married, before the proclamation of theOrdinance, notwithstanding the relation of marriage apd notwith-standing the existence of any community of goods between them, tomake, during the marriage, a gift of property in favour of the other,and the section further provides that" property so gifted shall besubject to the debts and engagements of each spouse as if the gifthad not been made. The words of the section can be read, it seemsto me, only as expressly providing that the gift may be so madeas to vest the property in the wife, notwithstanding the existence. of community of property between them. To read it in any otherway would make the proviso unnecessary, and would give thesection the effect only of permitting the husband and wife " toamuse themselves by writing deeds of gift/' as my brother DeSampayo has expressed it. It is urged that an examination ofsections 9 and 10 shows that where property vests in the wife for herseparate use. express provision is made giving her a power of dis-position. It seems to me that the absence of a provision in section13, giving a power of disposal, has the effect only of leaving thatquestion as it was before the passing of the Ordinance, viz., thatthe wife could dispose of the property during her husband's lifetimeonly with the consent of her husband, and that it does not affectthe vesting of the property in the wife. This being so, I am ofopinion that the land to be partitioned in this case passed to Subi.
There is not much oral evidence of possession. Gavaria has notbeen called as a witness, and Subi does not claim the'land forherself. Her position seems to be that, after the death of herhusband, her children were allowed to take the land as if by inherit- •ance, and she does not herself .prefer any claim either to the l-12thclaimed for the plaintiffs or to the remaining 5-12ths of the half..The contest is between the minor children of Bellinda and thedefendant. In this connection the deed P 5, under which Gavariabought the whole of the southern portion in 1906, seems to bedecisive as against the defendant, that the children of Subi werein possession in 1906. Gavaria was. a stepbrother of Bellinda, andmust have been fully aware when he bought from Sima Veda thathe was Bellinda’s husband, and as such entitled only to half ofBellinda's share. His purchase, therefore, in 1906 was an acknow-ledgment of the rights of Bellinda, Gunaya, and Lapi, the childrenof Subi, and the deed recites that the vendors were in possessionof the whole of the southern half. The District Judge says he hasno doubt that Gavaria possessed the whole land since 1899, butGavaria acknowledges the possession of the children of Subi bythe deed of 1906, and whether this debars defendant from usingevidence to contradict the document to establish, prescription asagainst Subi is a question upon which Subi should be heard if she
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so wishes. There is no clear proof that the children' of Subi were 1914.in possession for two years prior to 1906, and the plaintiffs havex
accordingly failed to prove a title by prescription. In the oirourn- ■ •■. •stances I agree with the order proposed by my brother De Sampayo.
De Sampayo A.J.—
In this ease the plaintiffs claim l-12th share of a land Thottila-gahalanda, and allowing to the defendant the rest of the land theyseek a partition thereof between themselves and the defendant.
One Amanduwa, who was married in community of property – toSubi, was at one time the owner of the land, and he by deed datedMarch 17, 1888, gifted it to his wife Subi. By deed dated November3, 1899, Subi sold the northern half of the land to Gavaria. Aman-duwa died leaving three children, named Bellinda, Gunaya, andLapi.- Bellinda was married to one Sima Veda, and died in 1900,and the plaintiffs are her children. By deed dated May 10, 1906,
Sima Veda, Gunaya, and Lapi, describing their title as by inherit-ance, sold the southern half of the land to Gavaria. It wouldseem that both before and after the dates of the above deeds Gavariawas in possession of the entire land, and mortgaged it to Mr. T. K.
Carron, who purchased* it in execution against Gavaria and sub-sequently sold it to the defendant, who thus claims the whole landagainst the plaintiffs.
The main contention on behalf of the plaintiffs is that Amanduwa’sdeed of gift in favour of his wife Subi had no practical effect; that,though title passed to Subi by virtue of the deed, the propertycame back to the community at the same moment, inasmuch aseverything of whatever kind belonging to the husband or wife fallsinto the community; that, therefore, on the death of Amanduwaa half share of the land came by inheritance to his children, andthat as Bellinda’s husband Sima Veda could legally dispose of onlya half of Bellinda’s l-6th share, the plaintiffs as heirs of Bellindaare entitled to the l-12th share which they claim. This contention,if it prevailed, would set at nought the provisions of section 13 of theOrdinance No. 15 of 1876, which abolishes the Roman-Dutch- lawprohibiting donations between spouses married in community, andsanctions such donations, subject to the proviso that the propertyso gifted shall be subject to the debts and engagements of eachspouse in the same manner as if such gift had not been made.
This section would be wholly meaningless, unless it be construedin intention and scope to provide that the property shall be theseparate property of the donee, subject only to the debts and engage-ments of the donor. It is argued that thiB is not the effect of thesection, inasmuch as, while other sections of the Ordinance expresslyprovide that certain species of property shall constitute the separateproperty of the wife, this section contains no similar provision.
The section might certainly have been more plainly worded, but
19*4.
DkSahpato
ajt.
Charts* v.CoudeH
( 40Q )
I think the form of words is explainable by . the eiroibnstance that,while those other species of property are to be. independent, of thedebts and engagements of the husband, any property donated byeither spouse is intended and declared 'to be subject to the debtsand engagements of both spouses as if no gifts had been made. Itcannot be supposed that by enacting section 18 the Legislaturemeant nothing, and the only way to give effect to it is to hold thatunder the Ordinance, when a gift is made between spouses marriedin community, the property gifted becomes the separate propertyof the donee. It is, however, not quite necessary to make referenceto' section 18 of the Ordinance in order to support Subi’s title to thewhole of the land under the deed of gift. Under the Roman-Dutchflaw a gift by one spouse to the other is not absolutely void. Sueha gift is valid if it is confirmed by the death of the donor withoutrevoking the gift or otherwise dealing with the property (Vander-linden's Institutes 214; Voett de donat. int. vir. et uxot% 2&t 1, H).
Since the gift begins to operate so as to vest absolute title in thedonee only on the death of the donor, it follows that the propertydonated then ceases to be property of the community, and no partof it falls into the estate of the deceased spouse. In this caseAmanduwa predeceased Subi without revoking the gift and withoutdisposing of the property, and therefore Subi became the ownerof the whole land, and there was nothing for the children to inheritfrom Amanduwa.
It is contended in the next place that the plaintiffs have acquiredthe l-12th share by prescription. The District Judge finds, andit is undoubtedly the fact, that Gavaria was all along in possessionof the entire land, but it is said that by taking the deed of 1906 fromSima Veda, Gunaya, and'Lapi he must be taken to have acknowledgedthat his possession previous to that deed was on behalf of thegrantors and indirectly of Sima Veda's children the plaintiffs, and-that -therefore the plaintiffs prescribed for the l-12th share throughGavaria himself. I am wholly unable to consent to this proposition.In my opinion the plaintiffs have no right either by inheritanceor by prescription.
' The title to the southern half would be still in Subi, unless Gavariaprescribed against Subi. This issue of possession was not beforethe Court, inasmuch as Subi, though she was next friend of theminor plaintiffs, wa6 no party to the action. Subi’s attitude in thecase appears to be that she renounced her rights in favour of herchildren, and that being so, the only question on this appeal iswhether the District Judge, though he is right in holding that theplaintiffs had no legal title, should not have made Subi a partyplaintiff to the action and tried the issue of prescription as betweenher and the defendant. Subi, of course, cannot be made a partyplaintiff against her will, but if she consents the course of proceedingsuggested would be a convenient one, inasmuch as it would enable
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the Court once for all to decide in this action all matters in dispute.With regard' to thi» question of prescription on Gavaria’s part, theDistrict Judge incidentally remarked in his judgment that the deedof 1906 was an “ acknowledgment of a right existing in another "in the sense of the Prescription .Ordinance, and that therefore thedefendant could not be said to have prescriptive title against Subi.1 think this reading of the Ordinance is erroneous. The wordsI have quoted occur in the definition of possession “by a titleadverse to and independent of the plaintiff,” and clearly the acknow-ledgment must be of the right 'of a party to the action or of hispredecessor in title. The acceptance of the deed of 1906 is an actof acknowledgment of the grantors' right, and, it may be, of anyother person in the same title with them, but it is not an act fromwhich an acknowledgment of any right in Subi can be inferred. Onthe contrary, it is the exact reverse, because the deed was grantedon the footing that Subi had no title, but that the grantors wereentitled by inheritance from Amanduwa.
I would make the following order. If Subi consents to be madea party plaintiff, the decree of dismissal of the action will be setaside, and an issue as to prescription against Subi will ba triedand the action determined accordingly. If Subi is unwilling to- bejoined, the judgment appealed against will stand affirmed. In anyevent the plaintiffs should pay the defendant’s costs in the DistrictCourt and in this Court.
Affirmed.
1914.
Db Sampavc*A.J.
Oharisa v.Ooudert
ii-